Citation Nr: 9837669
Decision Date: 12/28/98 Archive Date: 01/05/99
DOCKET NO. 97-06 393 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in St. Paul, Minnesota
THE ISSUES
1. Entitlement to an increased rating for residuals, right
knee injury with patellofemoral pain syndrome, currently
evaluated as 20 percent disabling.
2. Entitlement to service connection for residuals of a
hysterectomy.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Helinski, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1980 to
June 1981.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a May 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office and
Insurance Center (RO) in St. Paul, Minnesota, which denied
the benefits sought on appeal.
As a preliminary matter, the Board notes that in October
1997, the RO received a statement from the veteran in which
she appears to have raised a claim for unemployability. That
issue has not been developed by the RO, and is referred back
to the RO for any appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that her right knee
disability is worse than that represented by a 20 percent
evaluation in that she experiences considerable pain in her
right knee, particularly when walking, sitting, or standing
for long periods of time. She contends that such pain limits
the functional ability of her right knee and must be relieved
by bedrest. She further maintains that she may have
arthritis in that knee. Additionally, the veteran contends
that she should be granted service connection for residuals
of a hysterectomy that she underwent only two months after
her separation from active duty. She asserts that although
she had been discharged from the regular Army at the time the
complications arose following the birth of her child, she was
in “Reserve status,” and as such, service connection is
warranted. Therefore, a favorable determination is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against an evaluation in excess of 20 percent for
residuals of a right knee injury with patellofemoral pain
syndrome. It is further the decision of the Board that the
veteran has not presented evidence of a well-grounded claim
for residuals of a hysterectomy.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s claim for an increased rating
for a right knee disability has been obtained by the RO.
2. The veteran’s right knee disability symptomatology is
currently productive of no more than moderate impairment.
3. There is no competent medical evidence of record of a
nexus, or link, between any current residuals of a
hysterectomy and disease or injury incurred in active
military service.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation in excess of 20
percent for residuals of a right knee injury with
patellofemoral pain syndrome have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7,
4.40-4.46, 4.71a, Diagnostic Code 5257 (1998).
2. The veteran has not presented evidence of a well-grounded
claim for service connection for residuals of a hysterectomy.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
As a preliminary matter, the Board finds that the veteran’s
claim for an evaluation in excess of 20 percent for a right
knee disability is “well grounded” within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). A claim that a service-
connected condition has become more severe is well grounded
where the claimant asserts that a higher rating is justified
due to an increase in severity. See Caffrey v. Brown, 6 Vet.
App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App.
629, 631-632 (1992). The Board is also satisfied that all
relevant facts have been properly and sufficiently developed.
Accordingly, no further development is required to comply
with the duty to assist the veteran in developing facts
pertinent to his claim. See 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by comparing a
veteran’s present symptomatology with criteria set forth in
the VA’s Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4 (1998). When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating. 38 C.F.R.
§ 4.7. In every instance where the schedule does not provide
a zero percent evaluation for a diagnostic code, a zero
percent evaluation shall be assigned when the requirements
for a compensable evaluation are not met. 38 C.F.R. § 4.31.
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran.
38 C.F.R. § 4.3. The veteran’s entire history is reviewed
when making a disability evaluation. 38 C.F.R. § 4.1.
However, the current level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Board notes that in evaluating disabilities of the
musculoskeletal system it is necessary to consider, along
with the schedular criteria, functional loss due to flare-ups
of pain, fatigability, incoordination, pain on movement, and
weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v.
Brown, 8 Vet. App. 202, 206-7 (1995).
A brief review of the history of the veteran’s right knee
disability reveals that in a December 1994 rating decision,
the veteran was granted service connection for residuals of a
right knee injury, and a 20 percent evaluation was assigned,
from September 1994. That decision was based on evidence
that included the veteran’s service medical records, which
reflected an in-service right knee injury, and also a post-
service VA examination report, dated in November 1994, which
contains an assessment of chronic right knee pain. The 20
percent evaluation is currently in effect, and is the subject
of this appeal.
The RO assigned a 20 percent rating for the veteran’s right
knee disability pursuant to 38 C.F.R. § 4.71a, Diagnostic
Code 5257, which prescribes a 20 percent rating for knee
impairment manifested by moderate recurrent subluxation or
lateral instability. A 30 percent evaluation is assigned for
severe impairment of the knee, including subluxation and
lateral instability.
The Board has thoroughly reviewed all the medical evidence of
record, however, for the reasons set forth below, the Board
finds that the more recent medical evidence, see Fransisco,
supra, supports no more than the currently assigned 20
percent evaluation for a right knee disability, reflecting
moderately disabling symptomatology, and the appeal is
denied.
In March 1996, the veteran underwent a VA examination and was
diagnosed with patellofemoral pain syndrome. The veteran
complained of pain, which had worsened over the past few
years, and she also complained of her knee giving out.
However, the examiner indicated that he was unable to find
any evidence of instability in the veteran’s right knee at
that time.
VA outpatient treatment records dated from August 1995 to
July 1996, reveal that the veteran was seen with complaints
of right knee pain, although there was no evidence of
crepitus in the right knee, and there was full range of
motion. A November 1995 VA x-ray report revealed a negative
right knee, and there were no bone or joint abnormalities
noted. In October 1997, the veteran submitted a statement in
which she indicated that she was experiencing increasing pain
in her right knee, and that she had to go to work everyday in
pain. VA medical records dated from August 1993 to August
1997, reveal that in January 1997, the veteran underwent an
MRI of the right knee, which ruled out a medial meniscus
tear.
In the veteran’s substantive appeal, received in February
1997, she indicated that her last VA examination had not
properly considered her complaints of pain. She was afforded
an additional VA examination in March 1998, and was diagnosed
with right knee pain. The examiner indicated that there was
no pathology found on examination to correlate with the
veteran’s objective complaints. In that regard, there was
full flexion and extension, no tenderness to palpation, no
swelling, and all knee ligaments were intact.
The Board acknowledges the veteran’s complaints of pain in
her right knee, which she maintains limits her functioning
ability. However, the Board notes that in view of the
absence of objective evidence of symptomatology such as
instability, limitation of motion, swelling or subluxation,
it is arguable as to whether the disability associated with
the veteran’s service-connected right knee is moderate in
degree as contemplated by the currently assigned disability
rating under Diagnostic Code 5257. In the absence of such
symptomatology, the Board must conclude that the veteran’s
subjective complaints of functional impairment due to pain is
clearly contemplated by the currently assigned 20 percent
disability evaluation. See 38 C.F.R. § 4.59; see also 38
C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-7.
As noted, the record is devoid of any medical findings of
limited right knee motion, as defined under Diagnostic Codes
5260 and 5261, and there is also no medical evidence of right
knee instability. Furthermore, despite the veteran’s
contentions, there is no clinical evidence of record of any
arthritis in the right knee so as to warrant a higher
evaluation. See generally VAOPGCPREC 23-97. In short, the
Board finds that there is no basis for an evaluation in
excess of 20 percent for a right knee disability at this
time.
Furthermore, considering the veteran’s right knee disability
under other related diagnostic code provisions, the Board
notes that there is no evidence of record of ankylosis
(Diagnostic Code 5256); leg flexion limited to 15 degrees
(Diagnostic Code 5260); extension limited to 20 degrees
(Diagnostic Code 5261); or, impairment of the tibia and
fibula (Diagnostic Code 5262). Therefore, there is no basis
for a higher rating under other related diagnostic code
provisions.
In reaching the foregoing determination, the Board has
considered the clinical manifestations of the veteran’s right
knee disability and its effects on the veteran’s earning
capacity and her ordinary activity. See 38 C.F.R. §§ 4.1,
4.2, 4.10, 4.41. As noted above, the functional impairment
which can be attributed to pain or weakness has also been
considered, see 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8
Vet. App. at 206, along with all other pertinent aspects of
38 C.F.R. Parts 3 and 4. In conclusion, the current medical
evidence, as previously discussed, is consistent with no more
than a 20 percent evaluation for a right knee disability.
Should the veteran’s disability picture change in the future,
she may be assigned a higher rating. See 38 C.F.R. § 4.1.
At present, however, there is no basis for assignment of more
than a 20 percent evaluation for a right knee disability.
Furthermore, the Board finds no evidence in the record that
the schedular criteria are inadequate to evaluate the
veteran’s right knee. In that regard, the Board acknowledges
the veteran’s contentions that her right knee is painful when
she goes to work. However, the Board does not find that
record reflects that the veteran’s right knee disability has
caused marked interference with employment (i.e., beyond that
contemplated in the assigned evaluation), necessitated
frequent periods of hospitalization, or otherwise has
rendered impracticable the application of the regular
schedular standards. In light of the foregoing, the Board
finds that it is not required to remand this matter to the RO
for the procedural actions outlined in 38 C.F.R.
§ 3.321(b)(1) for assignment of an extra-schedular
evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
II. Service Connection
To establish service connection for a claimed disability,
the facts as shown by evidence must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service or, if preexisting active
service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131
(West 1991). Service connection may also be granted for
disability resulting from disease or injury incurred in or
aggravated while performing active duty for training, or
injury incurred in or aggravated while performing inactive
duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West
1991). Regulations also provide that service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(b) (1998). Natural menopause, primary
amenorrhea, and pregnancy and childbirth are not disabilities
for rating purposes. Chronic residuals of medical or
surgical complications of pregnancy may be disabilities for
rating purposes. 38 C.F.R. § 4.116 (1998).
In reviewing a claim for service connection, the initial
question is whether the claim is well grounded. The veteran
has “the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a); Robinette v. Brown,
8 Vet. App. 69, 73 (1995). A well-grounded claim is “a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107].” Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
To establish that a claim for service connection is well
grounded, a veteran must demonstrate “medical evidence of a
current disability; medical evidence, or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury.” Epps v. Gober, 126 F. 3d
1464, 1468 (1997); see Caluza v. Brown, 7 Vet. App. 498, 506
(1995); see also Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
Alternatively, a claim may be well grounded based on
application of the rule for chronicity and continuity of
symptomatology, set forth in 38 C.F.R. § 3.303(b). See
Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity
provision applies where there is evidence, regardless of its
date, which shows that an appellant had a chronic condition
either in service or during an applicable presumption period
and that the appellant still has such condition. Savage, 10
Vet. App. at 498. That evidence must be medical, unless it
relates to a condition that the United States Court of
Veterans Appeals has indicated may be attested to by lay
observation. Id. If the chronicity provision does not
apply, a claim may still be well grounded “if the condition
is observed during service or any applicable presumption
period, continuity of symptomatology is demonstrated
thereafter, and competent evidence relates the present
condition to that symptomatology.” Id.
Initially, the Board notes that there is no dispute that the
veteran had a hysterectomy following her separation from
service. The Board points out that while some chronic
diseases are subject to presumptive service connection if
they are manifest to a compensable degree within one year of
service separation, a hysterectomy is not among the
statutorily enumerated diseases for which presumptive service
connection may be granted. See 38 U.S.C.A. §1137 (West
1991); 38 C.F.R. §§ 3.307, 3.309 (1998). The veteran does
not appear to raise any contentions that her hysterectomy was
related to an incident of her active military service.
Rather, she asserts that although she had been discharged
from the regular Army at the time she experienced the post-
partum complications which led to the hysterectomy, she was
in a “Reserve status” until June of 1985 and as such,
service connection should be established.
While the Board has considered the veteran’s claim in light
of the requirements for establishing a well grounded claim
for service connection, outlined above, the Board finds that
the veteran has not presented evidence of a well grounded
claim for service connection for residuals of a hysterectomy.
The appeal must, therefore, be denied.
The veteran was separated from service in June 1981. She
apparently became pregnant during service. Relevant medical
records indicate an essentially benign prenatal course with
the only noted complication being Class A non-insulin
dependent diabetes mellitus and otherwise no prenatal
complications. Post-service medical records indicate that on
August 31, 1981, the veteran gave birth in an uncomplicated
spontaneous vaginal delivery. There were no complications
noted following the birth and the veteran was discharged on
September 3, 1981. However, she was readmitted on September
9, 1981, because of vaginal hemorrhaging. A narrative
summary from that hospitalization indicates that the veteran
was admitted with a diagnosis of post-partum bleed. During
the hospitalization, the veteran underwent dilatation and
curettage; hypogastric artery ligation; and transabdominal
hysterectomy. The discharge diagnoses were post-partum
hemorrhage; cuff cellulitis; and pelvic thrombophlebitis.
Pertinent regulations clearly provide that pregnancy is not a
disability for rating purposes. Further, although service
connection may be in order for the chronic residuals of
medical or surgical complications of pregnancy, it is clear
that there were no complications, medical or surgical in
nature, associated with the pregnancy while the veteran was
on active duty. Further, it is apparent from the record that
the complications arose following the delivery of the
veteran’s child and that these events (the delivery and the
ensuing complications) arose after the veteran’s active
military service. Moreover, there is no evidence of other
gynecological condition associated with the veteran’s active
duty service which may have led to a hysterectomy.
Essentially, there is no competent medical evidence of record
that the veteran’s post-service hysterectomy was due to
disease or injury incurred in service. An essential element
for establishing a well grounded claim is evidence of a
medical nexus between a currently diagnosed disorder, and an
in-service disorder. See Epps, 126 F. 3d at 1468. There is
simply no medical evidence of a nexus between the post-
service hysterectomy and the veteran’s active military
service, and for that reason, the veteran’s claim must fail
as not well grounded.
As noted above, the veteran is not contending that because
she became pregnant on active duty, service connection is
warranted for the complications that arose after service
which led to the hysterectomy. In this regard, the Board
notes the contention that because the veteran was in
“Reserve status” until June of 1985, she was in the
military and thus, service connection is warranted. However,
regardless of whether the veteran had a Reserve obligation
until 1985, there is no evidence that the veteran was either
on active duty for training or inactive duty training with
the Army Reserve when the post-partum complications which led
to the hysterectomy arose. Simply being subject to recall to
active duty or having a Reserve obligation, in and of itself,
does not constitute such training. There is simply no
provision of the law which would permit service connection
under any other circumstances associated with such military
service.
The Board has reviewed all of the veteran’s contentions of
record, including the lay statements submitted by her family
members and friends. Nevertheless, the Board notes neither
the veteran, or her family and friends who submitted
statements, appear to have any medical expertise or training,
and hence, they are not competent to comment on the presence
of a current disorder and to causally relate any current
disorder to an incident of active service. See Grottveit, 5
Vet. App. at 93 (lay assertions of medical etiology cannot
constitute evidence to render a claim well grounded under
section 5107(a)); Espiritu v. Derwinski, 2 Vet. App. 492,
494-495 (1992) (laypersons are not competent to render
medical opinions). Rather, competent medical evidence is
required to establish both a current diagnosis, and a nexus,
or link, to active military service, in order to satisfy the
elements of a well grounded claim.
In conclusion, in the absence of a well grounded claim, the
veteran’s appeal must fail. See Epps, 126 F.3d at 1469
(“there is nothing in the text of [38 U.S.C.A.] § 5107 to
suggest that the [VA] has a duty to assist a claimant until
the claimant meets his or her burden of establishing a ‘well
grounded’ claim”). The Board notes that it is unaware of
the existence of any additional evidence that would well-
ground the veteran’s claim. See McKnight v. Gober, 131 F.3d
1483 ( Fed. Cir. 1997); Robinette, 8 Vet. App. at 77-78.
ORDER
An evaluation in excess of 20 percent for residuals of a
right knee injury with patellofemoral pain syndrome is
denied.
In the absence of evidence of a well-grounded claim, service
connection for residuals of a hysterectomy is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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